In online advertising, it’s commonplace for businesses to purchase competitor trademarks as search engine keywords to get in front of potential customers. But when does leveraging a competitor’s online brand presence cross the line from healthy competition into trademark infringement?
The Fifth Circuit recently addressed this question in a trademark infringement action brought by prominent Texas personal injury lawyer Jim Adler—a.k.a. “The Texas Hammer” or “El Martillo Tejano.” Adler is a well-known personal injury lawyer specializing in auto accidents who has been practicing in Texas for over fifty years. He is famous for his explosive, over-the-top ads (many of which I can recite from memory, thanks to my Fort Worth, Texas upbringing), which prominently feature Adler as an aggressive, no-nonsense lawyer riled up and ready to bust down the courthouse doors to win the case.
As part of his marketing efforts, Adler purchases Google keywords using Adler trademarks as search terms—including JIM ADLER, THE HAMMER, THE TEXAS HAMMER, and EL MARTILLO TEJANO. For example, when a consumer performs a Google search using one of Adler’s mark as a search term, Adler's ads appear alongside the results produced by the search engine's algorithm.
Last year, Adler brought suit for trademark infringement in the Northern District of Texas against the Accident Injury Legal Center (“AILC”), a lawyer referral service for personal injury cases. AILC also purchases Adler’s marks as Google keyword...
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